It’s on: The Prosecutor of the International Criminal Court just announced that her office has begun a preliminary examination into events that occurred in Venezuela “at least since April 2017.” It’s a good first step — but it’s just that, one step along a very long road ahead. Here’s what to expect.
First things first, a preliminary examination is just that, an examination of the facts presented to the Office of the Prosecutor (OTP). It’s a preliminary step to see if there should be an investigation; the goal here is to determine if there’s enough of a factual basis, from the standpoint of jurisdiction, admissibility and the interest of justice to recommend to the Court the opening of a formal investigation, in our case, for crimes against humanity. Then see if the date, place and people involved all fall within the jurisdiction of the Court and, finally, determine if the case would be admissible.
Keep in mind, the ICC has 11 cases currently in this stage of proceedings. Some have been under preliminary examinations since 2003, as it’s the case with Colombia. Venezuela has been under PE before, over the events occurring since July 1, 2002, and the OTP decided against pursuing an investigation. Like many international organizations, the ICC is under-budgeted and short staffed; things move slowly.
If the OTP decides to ask the ICC’s Pre-Trial Chamber to officially open an investigation and issue arrest warrants — and assuming those arrests occur — the Court still has to review if there are merits to go to trial for each defendant. It then has to try the case and allow appeals before sentencing and executing the ruling. The process takes years at best, potentially decades.
While we may want retribution for all our suffering, it may not be the best idea to pursue every single wrongdoing de aquí a Pekín. The country will need to heal.
And there’s one snippet you may have missed: the OTP said that it would also look at violence coming from protestors. Sure, this is the OTP trying to show its impartiality, which the Rome Statute demands. However, this may be cuchillo pa’ nuestra garganta in the sense that it may excuse certain individuals or actions from responsibility on account of self-defense, as general principles of criminal law are fully applicable to international criminal proceedings.
The other thing we need to think about is immunities, or that little pebble in your shoe which states that under customary international law, sitting heads of state and other high-ranking officials may enjoy immunity from prosecution before international courts, or courts of other states. And if, as is the case of the Rome Statute of the ICC, there is an express provision to the contrary, you may find that states nonetheless will deny the ICC assistance in apprehending a guy like Maduro.
Proving guilt beyond reasonable doubt is a long and tedious road that doesn’t always arrive to a satisfactory destination. The ICC isn’t magic; it’s a plodding, slow, rule-bound, lawyerly bureaucracy. While we may all be sure that there is a chain of command and that all orders come down from a smoke filled room where the red guanabana sits, some crimes will not be attributed to higher-ups.
And while we may want retribution for all our suffering, it may not be the best idea to pursue every single wrongdoing de aquí a Pekín. The country will need to heal. I don’t want to get into the complicated mess that is transitional justice, but forgiveness and reconciliation will have to start somewhere, and there’s an argument to be made that the ICC hinders that process as often as it enables it.
So yes, there’s good news from the land of the tulips. But the road ahead is long, and may be full of surprises we won’t always like. Keeping expectations grounded is a good way to avoid unnecessary frustration.